SUPREME COURT, APPELLATE DIVISION FIRST DEPARTMENT

MARCH 31, 2009

THE COURT ANNOUNCES THE FOLLOWING DECISIONS:

Gonzalez, P.J., Tom, Sweeny, Catterson, Renwick, JJ.

195 The People of the State of New York, Respondent,

-against-

Andre Jackson, Defendant-Appellant.

Ind. 3988/04

Richard M. Greenberg, Office of the Appellate Defender, New York (Kerry S. Jamieson of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Sheryl Feldman of counsel) and Dorsey & Whitney LLP, New York (Eric B. Epstein of counsel), for respondent.

Judgment, Supreme Court, New York County (Bonnie G. Wittner,

J.), rendered October 17, 2005, convicting defendant, upon his

plea of guilty, of robbery in the first degree, and sentencing

him to a term of 7 years, unanimously affirmed.

Defendant made a valid and enforceable waiver of the right

to appeal (see People v Lopez, 6 NY3d 248, 256-257 [2006]).

Defendant had extensive discussions with counsel prior to the

plea (see People v Moissett, 76 NY2d 909 [1990]), and the court

did not conflate the right to appeal with the rights

automatically waived by pleading guilty. This valid waiver

forecloses review of defendant's suppression and excessive

sentence claims. As an alternative holding (see People v

Callahan, 80 NY2d 273, 285 [1992]), we reject those claims on the

merits.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 31, 2009

2

Gonzalez, P.J., Tom, Sweeny, Catterson, Renwick, JJ.

196 Richard Davimos, Jr., Plaintiff-Respondent,

-against-

John Halle, Defendant-Appellant.

Index 111013/02

Thomas M. Lancia, New York, for appellant.

Reiss Eisenpress LLP, New York (Matthew Sheppe of counsel), for respondent.

Judgment, Supreme Court, New York County (Eileen Bransten,

J.; Karla Moskowitz, J. at nonjury trial), entered September 18,

2008, awarding plaintiff damages in the principal amount of $1

million, plus interest from January 7, 2002 until date of

judgment in the amount of $582,657.53, unanimously affirmed, with

costs.

U[I]t is a well-established principle of contract law that

all contemporaneous instruments between the same parties relating

to the same subject matter are to be read together and

interpreted as forming part of one and the same transaction" (see

TBS Enterprises, Inc. v Grobe, 114 AD2d 445 [1985] [citations and

internal quotation marks omitted], lv denied 67 NY2d 602 [1986])

In determining whether contracts are separable or entire, Uthe

primary standard is the intent manifested, viewed in the

surrounding circumstances" (Williams v Mobil Oil Corp., 83 AD2d

434, 439 [1981] [citations omitted])

3

The evidence at trial overwhelmingly demonstrated that

defendant's personal guarantee, Total Film Group's (TGF)

corporate guarantee, TGF president Gerald Green's personal

guarantee, and TGF subsidiary 1st Mister's promissory note to

plaintiff for $1 million, all executed the same day, December 20,

1999, were part of the same transaction. The evidence showed

that defendant actively participated in the deal; knew the loan

amount to be for $1 million; agreed to guarantee the loan because

he knew plaintiff would not loan money without his guarantee; and

received a $50,000 commission in connection with arranging the

loan. Green testified that the $1 million note, dated December

20, 1999, was in return for plaintiff's investment in 1st Mister

and was the note referenced in the corporate guarantee executed

December 20, 1999. The fact that the guarantees all reference a

December 17, 1999 note is of no moment, in light of the

foregoing.

Furthermore, as noted by the trial court, defendant's

guarantee was a continuing one. A guarantor is bound by an

anticipatory agreement in his undertaking that he will not be

relieved of liability by a modification of the principal contract

(see Banque Worms v Andre Cafe, Ltd., 183 AD2d 494 [1992]).

Thus, even assuming, arguendo, that the parties intended their

guarantees to refer to the "unsigned note,H as defendant alleges,

rather than the December 20, 1999 note simultaneously executed,

4

their guarantees would nonetheless extend to the executed note

because they were continuing.

In view of the foregoing, we need not reach defendant's

contentions concerning the findings of fraud. His remaining

arguments are unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 31, 2009

5

Gonzalez, P.J., Tom, Sweeny, Catterson, Renwick, JJ.

197 Melanie Bryan, Plaintiff-Respondent,

-against-

250 Church Associates, LLC, et al., Defendants-Respondents,

R.C. Dolner, Inc., et al., Defendants,

Mayco Building Services, Inc., Defendant-Appellant.

[And A Third-Party Action]

Index 18964/04

O'Connor, O'Connor, Hintz & Deveney, LLP, Melville (Michael T. Reagan of counsel), for appellant.

Irom, Wittels, Freund, Berne and Serra, P.C., Bronx (Wesley M. Serra of counsel), for Melanie Bryan, respondent.

Gannon, Rosenfarb & Moskowitz, New York (Peter J. Gannon of counsel), for 250 Church Associates, LLC and 250 Church Group, LLC, respondents.

Order, Supreme Court, Bronx County (Mary Ann Brigantti-

Hughes, J.), entered July 14, 2008, which, insofar as appealed

from, denied defendant Mayco Building Services, Inc.'s motion for

summary judgment dismissing the complaint, unanimously affirmed,

without costs.

Defendant's argument in support of its motion is that there

is no evidence that it was negligent. However, defendant Ucannot

obtain summary judgment by pointing to gaps in plaintiff ['s]

proof" (Torres v Industrial Container, 305 AD2d 136 [2003]). It

6

must tender evidence that it was not negligent (see Winegrad v

New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985] i Greenidge v

HRH Constr. Corp., 279 AD2d 400, 402 [2001]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 31, 2009

7

Gonzalez, P.J., Tom, Sweeny, Catterson, Renwick, JJ.

198 In re NakYm S.,

~ Child Under the Age of Eighteen Years, etc.,

Kimberly N., Respondent-Appellant,

Administration for Children's Services of the City of New York,

Petitioner-Respondent,

Keith T., et al., Respondents,

John J. Marafino, Mount Vernon, for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Tahirih M. Sadrieh of counsel), for Administration for Children's Services of the City of New York, respondent.

Tamara A. Steckler, The Legal Aid Society, New York (Susan Clement of counsel, Law Guardian.

Order of disposition, Family Court, Bronx County (Carol A.

Stokinger, J.), entered on or about January 19, 2006, which, to

the extent appealed from, after a fact-finding determination that

respondent mother neglected the subject child, placed the child

with the Commissioner of Social Services until completion of the

next permanency hearing, unanimously affirmed, without costs.

The finding of neglect was established by a preponderance of

the evidence (Family Court Act § 1046[b] [I] i see also Nicholson v

Scoppetta, 3 NY3d 357, 368 [2004]). Petitioner satisfied its

initial prima facie showing of neglect by expert medical

8

testimony establishing that the child sustained immersion burns

to the buttocks, which were "of such a nature as would ordinarily

not be sustained or exist except by reason of the acts or

omissions of the parent" (Family Court Act § 1046 [a] [ii] ) .

Respondent failed to rebut the presumption of culpability with a

credible and reasonable explanation of how the child suffered the

burns and why she did not seek treatment earlier (see Matter of

Philip M., 82 NY2d 238, 244-245 [1993]). Furthermore, there

exists no basis to disturb the court's credibility

determinations, particularly its decision to credit the opinion

of petitioner's expert over that of respondent's expert (see

Matter of Ashanti A., 56 AD3d 373 [2008] ; Matter of Benjamin L.,

9 AD3d 153, 155 [2004]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 31, 2009

9

Gonzalez, P.J., Tom, Sweeny, Catterson, Renwick, JJ.

199 Carey Lovelace, Plaintiff-Respondent,

-against-

Eugene Krauss, et al., Defendants-Appellants.

Index 115548/07

Lazer, Aptheker, Rosella & Yedid, P.C., Melville (Zachary Murdock of counsel), for appellants.

Nadel & Associates, P.C., New York (Lorraine Nadel of counsel), for respondent.

Judgment, Supreme Court, New York County (Milton A.

Tingling, J.), entered October 14, 2008, declaring the contract

between the parties cancelled and directing defendant escrowee to